The Smell Of Hog Waste

The Kansas Supreme Court has affirmed a trespass and nuisance judgment predicated on the smell of hog sh*t

Norman Terry Nelson runs an industrial hog-farming operation a few miles east of Almena, a small town in northwest Kansas near the Nebraska border. The hogs generate enormous volumes of waste. To manage that waste, Nelson decided to use it as fertilizer on his farmland. So he piped treated waste from his facilities to his nearby farmland, where he used a pivot irrigation system to spray it onto the fields.

But this arrangement has ruffled more than a few feathers—or should we say wrinkled more than a few noses. Two neighbors sued for trespass and nuisance. They prevailed in the district court and on appeal. Nelson now asks us to overturn these judgments, arguing that he needed no permission to install the pipelines and invoking Kansas’ right-to-farm statutes to shield him from nuisance liability. We decline.

Nelson exceeded the scope of the public easement by installing pipelines beneath a public road for his private and exclusive use. Because the landowners did not authorize this installation, Nelson committed a trespass. This trespass, in turn, precludes him from relying on the presumption of “good agricultural practice” under the right-to-farm statutes. To rely on that presumption, the statute requires conformity with all applicable laws, a condition Nelson’s trespass violates. The lower courts correctly applied these principles, and we affirm their judgments.

Trespass

Nelson installed permanent structures—pipelines—for his private use in the subsurface of a public highway. The pipelines exceeded the scope of the public highway easement because Nelson permanently occupied the easement for his private and exclusive use, rather than a public one. Nelson’s pipelines thus infringed on the private property rights of Ross—the fee owner who retained all rights in the subsurface not included within the easement. Nelson did not have Ross’ permission to install the pipelines. Nor did he have permission from any other body with authority to permit the installation. Thus, Nelson committed trespass as a matter of law. And we affirm the judgments of the lower courts.

Nuisance

We agree with the district court and panel that Nelson’s agricultural activity failed to conform to state law. As such, he is not entitled to K.S.A. 2-3202(b)’s presumption that he was engaging in good agricultural practices. And because Nelson did not otherwise seek to establish that he was engaging in good agricultural practices, he is not entitled to K.S.A. 2-3202(a)’s statutory presumption that his agricultural activity was not a nuisance. We therefore affirm the Court of Appeals’ decision affirming the district court’s judgment.

(Mike Frisch)